Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
In what is usually considered a traditional culture where, for example, sex out of marriage is punishable by imprisonment and the perceived role of men and women in society and at home is very different to the UK, the case grabbed our attention.
Apparently, the wife claimed that the husband was only willing to have sex with her three to four times per week. The wife “alleged that the Defendant (husband) should either be able to please her or grant her a divorce”. The Judge (a man) informed the wife that having sex three or four times per week for married couples was “insufficient reason to claim a divorce” but referred the husband for a medical examination to establish if he was “healthy and fit and capable of pleasing her”.
Surely the same situation could not arise in England?
The ground for divorce in England is the irretrievable breakdown of the marriage. To establish that a marriage has broken down irretrievably, a spouse must show that there has been either adultery, behaviour (such that the spouse seeking the divorce “cannot reasonably be expected to live with the other” commonly “unreasonable behaviour”), desertion or periods of separation.
To date, England has failed to follow the lead of other jurisdictions such as New York state in losing the “fault” based system of divorce and couples are therefore still required to give examples of behaviour that lead to the breakdown of the marriage (measuring the level of the cat food in a tin still remains my all-time favourite) but what ignominy, in this day and age, for couples going through the unhappiness of divorce to have to show who did wrong by the other. It will remain to be seen whether the recently published manifesto by Resolution (the family lawyers’ organisation in England and Wales) will succeed in convincing the next government to introduce ‘no fault divorce’ here.
Whilst the Divorce Petition is a public document, the precise contents of it are private. The Judicial Proceedings (Regulations and Reports) Act 1926 prevents any more than a concise statement of what is in a Divorce Petition being reported. Those who followed the McCartney divorce will remember how part of Heather Mills-McCartney’s Cross Petition to the divorce, containing unpleasant and damaging allegations about Paul McCartney’s behaviour, were leaked to the press having been faxed from a newsagent in London by a person, the shop owner described as “a woman between 35 and 45, about 5ft 6 tall with “different” accent, possibly American or Canadian”.
Very few divorces are contested and fewer still made public. In 1978, however, Mrs Dowder tried and was eventually told by the Court of Appeal “a low sex drive cannot in itself be regarded as unreasonable behaviour”.
If the times have changed, there is no evidence of it, however, the test for “behaviour” is both subjective and objective and the divorce court will ask “will any right thinking person come to the conclusion that this Respondent has behaved in such a way that this Petitioner cannot reasonably be expected to live with him or her, taking into account the whole of the circumstances and the characters and personalities of the parties?”.
In recent times, the tradition among lawyers has been to down play the facts that give rise to the breakdown of the marriage. There is rarely, if ever, any financial advantage to portray the alleged behaviour of a spouse in full Technicolor. I have been using, broadly, the same facts for the past 20 years and no one appears to have noticed or objected – surely all unhappy marriages are alike?
Should you have any questions about the issues raised in this blog, please contact a member of our team of family and divorce solicitors.
Skip to content Home About Us Insights Services Contact Accessibility